Former Acting Solicitor General Discusses Conclusion Of The Mueller Report

AILSA CHANG, HOST:

A number of legal experts are taking issue with Attorney General Bill Barr's conclusion that President Trump did not obstruct justice. Barr declared this finding on Page 3 of a four-page letter that he delivered to Congress yesterday about the Mueller investigation. Special counsel Robert Mueller specifically left unresolved the issue of whether President Trump obstructed justice. So the question now is, how did Barr draw a conclusion within 48 hours that Mueller did not after 22 months? One of the lawyers raising that question is Neal Katyal, a former acting solicitor general. Welcome.

NEAL KATYAL: Thank you.

CHANG: So tell us first why is obstruction of justice a difficult charge to prove?

KATYAL: Obstruction of justice requires a corrupt intent. And presumably, that's what Mueller has been evaluating for the last 22 months. Did Donald Trump act with a corrupt intent when he fired Jim Comey, namely to stymie the Russia investigation, or was it done for other reasons? Remember, Donald Trump first said he did it because Comey had been unfair to Hillary Clinton...

CHANG: Right.

KATYAL: ...Which, obviously, nobody believed. And now it's - you know, I think everyone agrees that there was - Russia had something to do with it. Now the question is, was there a corrupt intent in the firing of Comey? That is a very fact-laden inquiry and something that would be surprising for anyone to resolve in a month or two, let alone in 48 hours.

CHANG: Another reason that Barr cites that supports why he found no obstruction of justice is because there was no evidence that the president was involved in an underlying crime conspiracy with Russia. Is that settled law - that when there isn't an underlying crime, there can't be obstruction?

KATYAL: I don't think even Attorney General Barr quite made that argument that if there's no underlying crime, there cannot be obstruction. And I'm glad he didn't because...

CHANG: Well, he says it goes to intent.

KATYAL: He said it might be a factor. And that is the most that the law says. And certainly, there is prosecution after prosecution of obstruction of justice cases in which there hasn't been an underlying crime, but someone has a nefarious intent and tries to stymie an investigation.

CHANG: But did you get the sense in the letter that Barr weighed the fact that there was no underlying crime in determining that there was no corrupt intent on President Trump's part to obstruct justice?

KATYAL: The letter certainly says that that is one factor. But it is striking to me that a prosecutor could ever reach the determination that there was no corrupt intent without even bothering to try to interview the subject of the person whose intent we're trying to evaluate.

CHANG: Now, Barr writes that many of the president's actions that go to this question of, did he obstruct justice - that those actions took place in public view. Why should that matter?

KATYAL: I don't think the fact that something occurs in public or in private matters at all to obstruction of justice. I mean, if I publicly threaten the prosecutor who's investigating me, I don't think it'd be a particularly compelling defense to say, oh, I did it in public.

CHANG: I mean, it also suggests that Barr is noting there were certain actions taken by the president in private that could arguably be deemed problematic.

KATYAL: I'm so glad you raised that, Ailsa, because in Barr's letter is an oblique reference to the fact that there have been other parts of the obstruction of justice investigation involving Donald Trump's conduct that has not yet been made public. The American people don't know what that is. The Congress doesn't know what that is. And you and I don't know what that is. It would be incredibly premature for the president to claim, quote, "total exoneration" when you have a line like that in the Barr report.

CHANG: I mean, why even weigh in, as the attorney general did, on this question of obstruction rather than just leave it up to Congress entirely?

KATYAL: One way of understanding what Robert Mueller did by not deciding it was to leave it up to Congress. The attorney general, Barr, just grabbed it for himself and said, oh, no, I get to decide this. I think one of the reasons we have to see the Mueller report is to know what Mueller actually thought about that. Was he leaving it up to Congress, or did he think the attorney general could go and reach such a determination himself?

CHANG: So if you get your hands on the Mueller report, what is the thing that you are most going to be looking for?

KATYAL: If I got my hands on the Mueller report, the thing I'd want to see is what are the reasons why Barr made the conclusion about obstruction of justice that he did? Was it because of the facts? If so, why didn't he try and interview Trump to learn all the facts? Is it the law? If so, is this really a legal interpretation of the obstruction of justice statute that anyone besides William Barr believes?

CHANG: Neal Katyal teaches law at Georgetown University. Thank you very much for joining us.

KATYAL: Thank you. It's been a pleasure, Ailsa. Transcript provided by NPR, Copyright NPR.